Acs — Forclosure? Inform yourself before you make a decision...
It is not so simple to fight a bank. The forensic audit co. and real state lawyers are in business to make money, and one has to be very careful because one size doesn't fit all. And before one can hire such organizations, should read their "Deed of Trust", the Note and the law in the state they reside.
The bank can bring an army of well paid lawyers. The bank have resources that the homeowners don't . Many of homeowners are in many different states with different laws. In many states, the Promissory Note is not secured by a Deed of Trust, the notes are considered promises to pay and entitles the Lender to foreclose based on non-performance on the note. In Lien Theory States the Lender has a lien on the property which has a non-judicial foreclosure method. Most of all lenders use this process to force foreclosure. There is no need to produce the note.
In Lien Theory States The Deed of Trust is a recorded document not The Note. The Deed of Trust is notice that the lender has the legal right to foreclose should the borrower fail to meet the terms of the mortgage contract. I have heard of the Note issue where lawyers say such things. They may be true in certain states or under a certain set of circumstances, but not in states where the borrower gets the Deed to the property at closing and the Lender gets a Note secured by a Deed of Trust, which carries the authority to force foreclosure.
Actually, if the loan is securitized is not even a loan transaction at all, its a brokered investment and thus in violation of many SEC laws. More importantly its a violation of Truth in Lending laws, because im most cases the real lender was never disclosed to the borrower at the time he signed the loan.
These notes are not really lost, they are housed with an entity called a Document Custodian, and this entity is part of the chain of ownership that goes into a Securitized Mortgage backed security Trust. The real problem of it all is when a "lender" is not the lender but a servicing company for the securities Mortgage backed Trusts who never took possession of the NOTE. Even if they claim they lost the Note, they still must prove to the court that they have a lawful right to hold the note. The notes must be negotiated per UCC laws and they cannot be assigned like a mortgage at the courthouse.
The servicing companies are playing games of confusion with the Courts. The Courts are so backed up that only a homeowner or an attorney with the knowledge can point out the legal arguments. Once one sue the servicing co., doesn't have to do or say anything in court because the burden of proof is on the bank.
Challenge everything if you are being foreclosed on! Don't walk away, fight and stay!
The goal is not a free house. The goal is learning the identity of the creditor, tracing the documents, and getting a FULL accounting of all financial transactions affecting the specific loan that is in issue.
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